The Organization relies on Rule 19 "Reducing Force," paragraphs (d) and (e) which read:

"RULE 19-REDUCING FORCE

(d) When forces are increased or vacancies occur, furloughed employes shall be returned, and required to return, to service in the order of their seniority rights. When a bulletined new position or vacancy is not filled by an employe in service senior to a furloughed employe who has protected his seniority as provided in this rule, the senior furloughed employe shall be called and assigned to the position.

(e) Furloughed employes failing to return to service within ten (10) days after being notified (by mail or telegram sent to the address last given) or give satisfactory reason for not doing so will be out of service."

In addition, and with substantially more documentation and cogent argument, it cites Rule 7 "Promotions, Assignments and Displacements," paragraph (a) which reads:

"RULE 7. PROMOTIONS, ASSIGNMENTS AND DISPLACEMENTS

(a) Employes covered by these rules shall be in line for promotion. Promotions assignments, and displacements under these rules shall be based on seniority, fitness, and ability; fitness and ability being sufficient, seniority shall prevail, except, however, that sexdirity shall not apply in filling the positions named in Paragraph (c) of this rule. (In filling positions listed in Paragraph (c) of this rule preference shall be given to employes coming under the provisions of this agreement.)"

(b) The word "sufficient" is intended to more clearly establish the right of the senior employe to bid in a new position or va;ancy where two (2) or more employes have adequate fitness and ability."

It seems clear that the contract requires that preference be given the senior employe in filling an opening if he can meet the minimum requirements of the job and not that he must be adjudged to have superior qualifications relative to a junior employe. In fact, there is nothing in the record as to the fitness and ability of the employe awarded the job.

The Organization has shown by competent evidence that the Claimant had successfully bid on the job of Caller 1494 at the same location as here involved in March 1961 and previously at other locations on the job SwingPorter Caller. It is stated the Claimant's record, examined by a representative of the Organization, fails to reveal any disqualification, reprimand or disciplinary action taken against the Claimant and that the Carrier has produced no evidence to the contrary. It is thus argued that be has performed the work here in question, after his bid was accepted by the Carrier, and that he must be considered as having "sufficient fitness and ability" as well as the seniority to qualify under Rule 7.

The Carrier states repeatedly in the handling of the dispute on the property that the Claimant "had never been considered as being qualified to handle a Caller position, never indicated a desire to learn Caller work, and

had never requested permission to do so * * *" This statement or some paraphrase of the statement was continued unchanged as the Carrier's defense through an exchange of several letters and in conferences with the Organization up to the appeal to the highest officer. The reply to that appeal quoted from a letter from the Superintendent, to the effect that he had investigated the claim and found (1) that the Caller position at Kingsville (the location here involved) required a high degree of knowledge, apparently beyond that required of Callers at other locations and (2) that he had talked with a former employe who recalled that the Claimant had been disqualified by the Chief Crew Caller as Caller at Kingsville after he had worked on the job two days. Elsewhere in the record the Carrier denies that the Claimant had ever occupied the position.

The Carrier argues that absent a showing of capriciousness, prejudice, or other subjective reasons for disallowing the claim of the senior employe, the Board should not, and has not in a long series of awards, attempted to set aside the judgment of management in a matter of this kind.

In this case, however, the Carrier has not placed in the record any documentation or other evidence of any value to support its position that the Claimant did not possess "sufficient" qualifications for the opening. It has merely asserted this to be a fact, which does not make it so. Neither has it produced any records from its own files to rebut or refute the records placed in evidence by the Organization.

It is the considered opinion of this Board, based on a preponderance of the evidence, that the Carritr did improperly deny the Claimant the position of Caller 1494, Kingsville, Texas, and that be should be compensated for the period of the denial as stated in the claim or for such other period of denial which can be substantiated and agreed upon by the parties.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the Agreement was violated.

AWARD